Stench
of David Hicks Prosecution Lingers as Court Exposes its Flimsy
Basis

By Richard Ackland

October 19, 2012 "Brisbane
Times"
-- It would have taken the skills of a first-year law clerk
in the Attorney-General's department to advise that the case
against David Hicks
was a big no-no. It didn't need an appeals court in the United
States this week to tell us this was a dodgy political
prosecution.

Being fitted-up for a war crime for things he allegedly did
before the crime was put on the books required some heavy-handed
manipulation.

Hicks was charged in 2007 with ''material support for
terrorism''. This related to ''engaging in combat against US
forces'' in Afghanistan in 2001.

The Military Commission and the offence itself came into
existence in 2006, by an Act of Congress after the 2001 version
of the Military Commissions was struck down by the US Supreme
Court as unconstitutional.

So on an elementary level the timing in all this was way out,
and the stitch-up required high-level intervention.

Don't take my word for that. Take the word of the man who
prosecuted David Hicks at Guantanamo, Colonel Morris Davis.

In a 2008 interview that Davis gave to the independent
investigatory media organisation Truthout, he said that when he
was appointed a prosecutor he made it clear to his superiors in
the Pentagon that ''the one case I did not want to start with
was David Hicks''.

He explained: ''We told the world these guys are 'the worst of
the worst'. David Hicks was a knucklehead. He was just a
foot-soldier, not a war criminal.''

Colonel Davis (retired) said that in January 2007 he received an
urgent phone call from the top lawyer at the Pentagon, William
''Jim'' Haynes, who asked him: ''How quickly can you charge
David Hicks?''

It was the first time that the general counsel at the Pentagon
had ever called him about a specific case and he felt it was
decidedly ''odd''.

At this point, the Manual for Military Commissions had not even
been produced by the Defence Department. The manual implements
the law and spells out the elements of the crimes charged under
the Military Commission Act.

It did not exist at the time Haynes (who Bush was trying to
shoehorn onto a US appeals court) was pressuring Davis to charge
Hicks, who at this stage had already been in Guantanamo for more
than five years. Davis said it would probably take two weeks to
charge Hicks after the manual saw the light of day.

''Two weeks,'' Haynes replied. ''Two weeks is too long.''

The rush was on for the reason that John Howard had an election
that year and his government had nominated David Hicks as
Australia's terrorism poster-boy.

There was mounting distrust in the electorate that an Australian
had been held in cruel circumstances in Cuba, without charge,
for an extended time.

After years of insouciance by the electorate, Hicks has become a
hot political potato and the menacing rhetoric of the
attorney-general, Philip Ruddock, and Foreign Minister,
Alexander Downer, was wearing thin.

Hicks was charged in February 2007 with material support for
terrorism, or MST. The next month he had entered into a plea
deal and by April he was out of Guantanamo and into the Yatala
Labour Prison in South Australia to do a further nine months and
not to be released until after the November election, subject to
further restrictions.

Davis said that Haynes and vice-president Dick Cheney's adviser,
David Addington, had negotiated the plea deal without his
involvement.

He felt the whole thing was designed to bolster John Howard's
electoral prospects by making the Hicks case go away.

Well, it did not go away.

In July this year the Commonwealth prosecutors had to drop a
proceeds-of-crime case against Hicks over the publication of his
memoir, Guantanamo: My Journey.

This ill-conceived prosecution had been egged on by the shadow
attorney-general, Senator George Brandis, and some bone-headed
editorialising in the Murdoch papers.

The common law and the Evidence Act both say that an admission
of guilt cannot be put to a court if it was provoked by
''violent, oppressive, inhumane or degrading conduct''.

Even a cursory look at Hicks's book showed that he was subjected
to ill-treatment and the prospect of indefinite detention if he
didn't sign up for the charge.

Yet on Wednesday we have relics of the Howard era drilling into
us the old theme song that Hicks was an associate of the
Taliban, which beheads people who don't agree with them.

Now we have the decision from the DC Circuit court in the Hamdan
case, by three conservative Republican-appointed judges.

Hamdan had his MST conviction overturned. Unlike Hicks, he had
not taken the plea deal, but was convicted and did time -
convicted after the Pentagon rejigged the panel hearing his case
so as to get the right result. He's now back in Yemen driving
taxis.

Just think about the implications of what the US was trying to
do with people like David Hicks.

It is saying that anyone in the world, who has suitable radical
connections and who is in a war zone fighting against Americans,
is guilty of a war crime.

This is a significant departure from the Geneva Conventions and
the International Covenant of Civil and Political Rights, quite
apart from the US constitution. And yet we signed up to this
shameful fix.

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